Kinyua & 3 others (Suing as the legal representative of the estate of Francis Karandi Mwirichia – Deceased) v Kaigongi (Sued as the legal administratix of the Estate of Sabelio Kinoti – Deceased) (Environment & Land Case 301 of 2017) [2022] KEELC 2419 (KLR)
The bottom line
#A Kenyan court confirmed family land registered in one person's name can be shared through customary trust, even decades later.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs pleaded and proved a customary trust over L.R No. Abothuguchi/L-Kaongo/424
The court found the customary trust proved: the land was bought by Colleta Kabugi for her two sons and their families, and registered in the name of her elder son in line with Meru customs because a female could not be registered at the time
The court accepted the plaintiffs' consistent evidence that Colleta Kabugi purchased the suit land and had it registered in her elder son's name under Ameru customary norms, since women could not hold registered titles then. Both parties' parents were buried on the land, and the defendant never sought eviction. The court concluded the land was family land held for both branches of the family, satisfying the Kiebia elements.
Whether the claim was defeated by delay or non-assertion of the trust during the claimant's lifetime
No - delay does not defeat a claim founded on trust or fiduciary relationship, which is not subject to limitation under section 20(1) of the Limitation of Actions Act
The defendant argued that neither the plaintiffs' father nor the grandmother asserted the trust during their lifetimes, waiting 34 years. The court relied on Musyoka J's decision in Re Estate of Charles Ngotho Gachunga to the effect that limitation does not apply to trusts or fiduciary relationships. This disposed of the defendant's laches-style objection.
Whether the defendant's claim that her late father bought the land was established
The court rejected the defendant's assertion, noting she was about three years old when her father died, produced no purchase agreement, and called no seller as witness
The court found the defendant's account unmerited: she was an infant at her father's death and could not corroborate the alleged purchase; DW2 confirmed no sale agreement existed since agreements were not written at the time. Against this, both the plaintiffs' father and the grandmother were interred on the land and their families remained in occupation without objection.
Legal principles established
#- The elements of a customary trust are: the land was before registration family, clan or group land; the claimant belongs to that family, clan or group; the relationship is not remote; the claimant could have been registered as owner or beneficiary save for intervening circumstances; and the claim is directed against a registered proprietor who is a member of the family, clan or group
- There is no limitation of action where a trust or fiduciary relationship is involved, under section 20(1) of the Limitation of Actions Act
- A woman who returns to her parents upon divorce or otherwise remains unmarried is entitled to the land she actually lives on and depends upon, and as a child of the deceased is also entitled to distribution of the land
Court orders
#- 1.Prayers 1 and 2 of the plaint dated October 4, 2017 (stay of the Githongo SRMC Succession Cause No. 22 of 2016 and declaration of customary trust of half share of the suit land) are allowed
- 2.Costs to the plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (claim founded on customary trust over L.R No. Abothuguchi/L-Kaongo/424)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyua & 3 others (Suing as the legal representative of the estate of Francis Karandi Mwirichia – Deceased) v Kaigongi (Sued as the legal administratix of the Estate of Sabelio Kinoti – Deceased) (Environment & Land Case 301 of 2017) [2022] KEELC 2419 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2419/eng@2022-05-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.